A law blog addressing the foci of 3 intrepid law geeks, specializing in their respective fields of knowledge management, internet marketing and library sciences, melding together to form the Dynamic Trio.

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8/13/09

Peter Schwartz of the Huffington Post writes in his article "The Reinvention of Legal Research: The Future is Now" about information being a commodity and how the easy availability of access to "data" is posing a new challenge to legal research giants Lexis and Westlaw. As much as I wish that Peter's assumptions were true, or at least had the chance of happening, judging by these same giants of legal research are posting huge profits during a slump in the global economy, I'd say the "future" is still in the future.

Let's look at the points that Peter lists:

Data Trumps documents

Information is liquid

Information is a commodity

Customers will not pay for research

Large legal publishers are in trouble

These are the wondrous times in the world of online publishing

Before walking through these points, let's remember what is the "end game" of legal research. When all is said and done, your final product should be something that is upheld by a court of law if challenged by another. Within the common law courts, this generally means that you must point to existing documents that support your claim. The whole idea behind such concepts as stare decisis is that the "law" is built upon existing law and decisions and is usually not changed except in extreme circumstances. When you have concepts like stare decisis, you need to be able to rely upon solid resources that have earned the trust of the courts. It may be true that information is liquid, but laws and the legal information behind those laws are much more like ice than they are like water.

The good and bad thing about legal research today is the fact that information is a commodity. This has created a conception that all information is online (and free) and can be found if you are a savvy enough researcher. Granted, there is an enormous amount of information available to legal researchers and a lot of it is free. That may be fine if you are writing a blog or even an article for a news organization. But, quick and easy and free information will not necessarily be viewed as authoritative by the courts. For example, try to submit a Wikipedia citation to a court. It will be tossed because its lack of consistency and authority. My friend and fellow Houstonian, Jason Wilson, wrote about this topic in his posting "Screw Authenticity, I Want It For Free" and Jason makes a good point that although folks like Chris Anderson say that information wants to be free (and that people don't want to pay for information), when it comes to case law or legal authority, you're going to have to go to a stable information source and usually have to pay for it. Otherwise, you risk the chance of having a judge question the authority of the information you are presenting.

Anyone that has been in the legal research for the past 20 years knows that it is a shrinking world. The big legal providers have been acquired and turned into huge conglomerates of online publications. If you're on the legal publisher side, you say that you've "diversified", and if you're on the legal research side, you say that the legal publication world has "shrunk". Although there are a number of smaller legal publishers, non have the general authority and respect - in the eyes of the courts - that the two big players have. Although big pocket publishers like Bloomberg are jumping into the fray, they have a huge uphill battle to wage before they can compare themselves to the big two publishers. Just ask big publisher Wolters Kluwer if their acquisition of Loislaw has panned out the way they thought.

I have to agree that these are wondrous times in the online publishing world. Aggregators and blogs like the Huffington Post are thriving in a world starved for quick information and real-time search. But, the courts aren't in this same category. Legal researchers do not have to satisfy the world's hunger for information, they have to satisfy the court's expectation of presenting authoritative information that can withstand the challenges of a system that relies upon that authority to drive the decision it makes.

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comments:

"On the one hand information wants to be expensive, because it’s so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other."

Primary law should be publicly available. Every case, statute and regulation should be freely and easily accessible. You can't comply with the law if you don't know what it is.

The publisher's should make their money and spend their resources on synthesizing and summarizing the primary law and adding robust search engines on top of those to help lawyers interpret the law.

Free/blog/crowdsourced research is a small (but important) part of my current legal research. It is useful for certain things..for example, it usually takes some time for a decision to be reported in Lexis but blogs jump on it right away.

But if you want to find out things like what the standard is for something in a circuit, whether a case is still good and what other cases are saying, there's no substitute for a paid service. I could see using it for another 5 years probably, until the other stuff catches up (if it ever does).

I couldn't agree more. Primary law should be freely and easily available. I spent four years of my life working on that very project with the Oklahoma Supreme Court. Now, name any other court that has put every single case they have decided online, free and with a vendor neutral citation? We even offered other courts to use the same system we had developed to host their cases (for free) and the only state to take us up on that was Wyoming (God bless 'em!)Somewhere around 1950, most courts stopped publishing their own decisions and turned over that responsibility to West and its National Reporter Set. I didn't like the fact that West (and the courts) made the National Reporter sets the "official" citation needed to be used in all court documents. And, for a long time (and even to today in some respects), the citation to the internal pages from the National Reporter sets are considered a copyright of West and must be licensed by third parties. (Granted, some say they lost that right a few years ago, but that was a lower court decisions and I'm not sure where we stand on that issue today.) I also think that most lawyers use the Westlaw/Lexis databases for the exact reasons you state -- the value they add to the primary law through headnotes,and the secondary and tertiary resources that spring forth from the primary law. I'm not saying that West and Lexis are angels, but if you're looking for authority and something that you know will be there in five or ten years if you need to pull the same information later, then these are your two best resources.

I absolutely agree with your assessment of Peter's article and the fact that legal information and legal publishing are not yet at that "everything is available" moment.

Doug's comment about primary law being available nearly exists in Canada. Just look at CanLII, or it's sister LIIs in other commonwealth countries.

The fact that legal information is widely available is never going to eliminate legal publishing. Textbooks and other tools including case and statute annotations and finding aids which classify and categorize case law into more usable and authoritative bites (or bytes) will still be needed.

Legal publishers have always focused on providing authoritative content. It is perhaps unfortunate for consumers of this information that there is less competition in the market, but it is a difficult job to do well. I would rather have a few great products than many that don't meet my needs.

I agree, unfortunately, that the future about this is indeed in the future. Several hindrances exist today.

It starts, not unlike CLE's quagmire, with the courts, as you touched on in the article and what they accept as authority. Not addressing this, the courts in effect assume the role of benefactor to Westlaw and Lexis.

A not insignificant factor is the cost and time associated with training. Law firms who have a flat-rate agreement with only one and use the other as needed will often turn down a lower bid during contract renewal negotiations to avoid dealing with the outcry and time and cost involved with extensive retraining. Imagine dropping another 5-10 choices in there!

Partners in the firm who may glance at a monthly bill for the first time may engage in a flurry of activity (after picking their jaws off the ground) about alternatives such as performing all preliminary research on free or low-cost sources, then get the final product from Westlaw for the brief...., but again, as long as hourly billing remains the standard, then the time it takes to do that is counter productive.

Not sure where the answers lie, but look forward to observing it's evolution.

In the UK we are backed into a corner by the big publishing houses you mention because they are the only places to go for reliable resources - even primary law that should be freely available is often difficult to find (for example, consolidated statutes).

As for the courts ... they do not even accept online references to case precedent and statutes and in many cases we actually have to lodge the book in court. Wikipedia doesn't stand a chance!

For me the value that publishers can bring is the search, commentary and intelligent delivery of current awareness and they will need to do that to justify the ever increasing costs.

Greg, good comments. However, I think that you are understating the value of secondary materials. In today's world it's not enough to have all the documents without some way of figuring out what it all means, how it can be used and a well-informed idea of where it's going. Classification, cite verification tools and works of scholarship and analysis, help us get to the end game of which you speak. As far as I know, unfortunately, West, Lexis, CCH and BNA still have monopolies in these markets. Rats.